Awoda v The State [1984] PGLawRp 439; [1984] PNGLR 165 (28 June 1984)

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CRIMINAL LAW - Practice and procedure - Disclosure of defence - Trial judge may not order - Trial judge may request.

CRIMINAL LAW - Evidence - Inadmissible evidence - Objections to - Duty of counsel - Duty of trial judge.

APPEAL - Miscarriage of justice - Ground of rejection of inadmissible evidence - No objection by counsel - A relevant consideration - Ultimate test substantial miscarriage of justice.

N1>(1) In criminal proceedings the trial judge may request but cannot order counsel to disclose his defence.

N1>(2) On appeal against conviction for a criminal offence on the ground of reception of inadmissible evidence, failure to object to the admissibility of the evidence at the proper time, either by design or accident, is a circumstance, but not a conclusive one, to be taken into consideration in determining whether there has been a substantial miscarriage of justice.

Discussion of the overall duty of the trial judge to ensure the reception of admissible evidence.

Discussion of the duty of counsel to object to the reception of inadmissible evidence.

Discussion of the duties of counsel in relation to cross-examination with reference to the rule in Browne v. Dunn.

KAPI DCJ PRATT BREDMEYER JJ: The appellant was charged that on 26 April 1981 he murdered a man Nime Makam. The accused was a policeman and the deceased was a suspect for attempted rape. The appellant was convicted after a trial before Kaputin J. and sentenced to three years imprisonment with hard labour. He was represented at the trial by an experienced counsel Mr I. Glasgow. The appellant appeals against conviction only.

The first ground of appeal relates to something which happened at the beginning of the trial. After the opening by the State Prosecutor the following exchange occurred.

“(His Honour to Glasgow). I think it is quite proper for court to ask defence as for indications as to what their defences would be. (Mr Glasgow). The defence will not do that. It is up to State to prove this case. What authority has your Honour got to ask the defence to disclose their defences?

(His Honour). I’ve no authority. In any case I am my own authority. I am ordering you now to disclose your defences and if my ruling is wrong, you can take matter up to the Supreme Court. We are not here for head-hunting. (Mr Glasgow). Defences are now disclosed under protest. Defence denied that accused assaulted deceased. Not denied that he was at area at some stage. Not instructed to make any admission. Not raising self-defence or provocation. Only that he did not take part in the assault.

(His Honour). Well, those are as far as I was asking you to do. I was not asking the defence to make admissions to all the elements of the charge.”

We consider that the learned trial judge erred in ordering defence counsel to disclose his defence. We know of no authority or practice in Papua New Guinea or elsewhere which allows a trial judge to do that. But in our view it was an error which did not in the circumstances of this case confer any advantage on the prosecutor nor did it disadvantage the defence counsel in his conduct of the defence. The error did not in our view produce any actual miscarriage of justice and, by itself, would not enable this appeal to succeed.

We consider that it is permissible for a trial judge to ask defence counsel certain questions about the case, for example, will the medical report be challenged? Will the record of interview be challenged? And even, what will be your defence or defences? The answers to those questions can be helpful to a trial judge. They can give a judge a better idea of the anticipated length of a trial and enable him to plan his work accordingly. They can lead to a more expeditious trial. For example, if, in a trial for dangerous driving causing death, defence counsel says that he will not contest the fact that the accused was the driver, that the accident occurred, and that the victim died, the prosecutor can lead his witnesses on these matters more fully than he would otherwise have done. If the defence counsel is inexperienced, and the trial judge knows what the defence is, for example provocation, he can remind the defence counsel to cross-examine State witnesses on that issue. The trial judge may wish to assist an inexperienced defence counsel in that way in the interests of ensuring a fair trial.

Some judges ask such questions of defence counsel at a prior call-over or conference. Others may do it during or just after the opening by the State Prosecutor. Other judges may not ask those questions at all. As has been stated, the answers to such questions can be helpful to the judge. But two points should be stressed. Defence counsel cannot be forced or ordered to answer those questions. He can only be asked. Secondly, defence counsel is not bound by his answers. He may say for example that he is running the defence of provocation but that statement does not preclude him calling evidence on some other defence, nor from exploiting some other weakness in the State case, such as lack of intent or lack of identification, which may emerge in the course of the trial. A defence counsel is entitled not only to run a positive defence, such as provocation or accident but also to test other aspects of the State case. Flexibility and latitude to the defence must be allowed. An apparently strong State case can suddenly weaken if a key witness is not called, or does not come up to proof, and defence counsel is entitled to exploit that weakness irrespective of what he might have said to the trial judge before the start of evidence. In this case the learned trial judge was not wrong in asking, but erred in ordering, defence counsel to disclose his defence.

“The evidence in relation to the identification of the body of the deceased is so insufficient that no reasonable tribunal of fact could find that the body examined by the doctor was the same body named in the indictment.”

The third ground alleging that it is unsafe and unsatisfactory to uphold the conviction is really a repetition of the first and second grounds.

There is an initial difficulty faced by learned counsel for the appellant stemming from the way the defence was conducted at the trial. No one knew the name of the victim as set forth in the indictment until after the man had died, but his name did appear on the top of the post mortem report which was received in evidence during the trial without any objection by counsel for the accused. This counsel was experienced, and one would not readily assume he had not observed the name of the deceased typed at the top of the post mortem report. Further, evidence was also given on oath by the doctor who carried out the post mortem examination that the deceased was identified to him as the person whose name he placed at the head of the report. No cross-examination was made of any of the medical evidence. Thus:

N2>(a) the hearsay evidence as to the name of the deceased as given to the doctor by an alleged relative was neither objected to nor cross-examined.

N2>(b) the failure to cross-examine, gave no indication that the defence was in any way taking exception to the date appearing on the post-mortem report as 26 April and not 27 April.

The doctor’s evidence however, made it clear that he carried out one post-mortem examination on 27 April. The body upon which this post-mortem examination was performed had arrived at the hospital in a “fully unconscious condition” at about 11.00 p.m. and was there received by a male nurse, Singh Moses, who immediately sought and obtained the assistance of Dr Seta in view of the patient’s condition. Dr Seta there and then proclaimed life extinct but there was no person who could advise him of the identity of the body. Consequently, he arranged for it to be put into the morgue with the attached tag “name unknown” and carried out a post-mortem examination on the body on the afternoon of the following day, 27 April. He recognised the facial features of the body on the second occasion from having seen it shortly after admission on the previous night. He was completely satisfied that they were one and the same person. There was no suggestion by the defence that the situation was otherwise.

The learned trial judge had no difficulty in coming to the view that the post-mortem was carried out on the same body as had been admitted the previous night and that Dr Seta had simply placed an incorrect date on his post-mortem report as a result of an “accident”. We can see no reason for coming to a conclusion different to that of the trial judge. Apparently defence counsel was endeavouring to convince the Court that because of the incorrect dates the doctor may have examined the wrong body on 27 April. Obviously, this whole argument collapses once the court came to a decision of fact contrary to the defence view.

Appellant’s counsel quite correctly points out that it is not the task of the defence to patch up or point out the errors of omission in the prosecution case. That, however, is a rather different matter from allowing the reception of evidence without objection and then claiming the point in the final address. Although we do not think it is necessary to come to any view on the matter, it is difficult to resist a conclusion, in the light of counsel’s immediate attack on the matters of hearsay and wrong dates, that the failure to cross-examine and the failure to object to the hearsay evidence was a deliberate course followed by counsel after due consideration. The medical evidence was clearly put forward by the prosecution as relevant to the charge against the accused by virtue of its claim that the victim assaulted by the accused died as a result of that assault. If, however, the defence believed that the doctor may have carried out a medical examination on and was therefore giving evidence about a totally different person from the one assaulted by the accused, one would have thought an objection would immediately have been lodged, if on no other ground than that the evidence of Dr Seta was completely irrelevant to the charge.

Apart from the submission stemming from the incorrect date appearing on the post-mortem report, trial counsel also suggested in the same submission that the evidence given by the doctor concerning identification of the deceased to him by a relative was hearsay, and therefore was not evidence of the fact that the body was indeed “X”. Whilst there may be some merit in this submission, the vital difficulty still remains for appellant’s counsel that no objection to the admissibility of this evidence was made at the proper time. The earlier authorities concerning such a situation appeared to take rather opposite views, but one must bear in mind two important historical factors. The earlier view was enunciated by the Court of Crown Cases Reserved as set up under a statute of 1848 in the United Kingdom which gave extremely limited powers indeed to the court on appeal matters: see for example Stephen History of the Criminal Law, vol. 1, 311ff. The later view, however, came from courts which were deliberating shortly after the commencement of the Criminal Appeal Act 1907 (Imp.). That Act, of course, vastly increased the powers of the Court of Appeal and introduced for the first time the feature that irrespective of the merits of the point, the appeal would not succeed if the court considered “that no substantial miscarriage of justice has actually occurred.”: see s. 4. This ground was not available to Crown Cases Reserved.

In R. v. Gibson [1887] UKLawRpKQB 27; (1887) 18 Q.B.D. 537, the learned judges of the Crown Court were unanimous that the conduct of counsel was irrelevant and that no person could remain convicted where such conviction arose from the improper admission of evidence. It was the duty of the judge, they said, to ensure that only proper evidence went before the jury, and it was his duty also, to take care “that the prisoner is not convicted on any but legal evidence”: see Wills J. at 543. At the trial the prisoner’s counsel had not objected to the admissibility of some vital evidence concerning identification of the accused, but in Lord Coleridge’s view, it was “immaterial to consider whether counsel exercised his discretion rightly or wrongly” (at 540). Baron Pollock gives some indication as to the reason for the strict view which the learned judges took. He says in effect at 542 that the court must be careful not to place itself in a position where it has to decide what way the jury would have acted if the only evidence before it had been that which was legally admissible. To achieve this very end was one of the objects which lay behind the “no substantial miscarriage of justice” feature introduced into the legal system in 1907.

Perhaps the most appropriate example of the other line of approach is to be found in three cases in which Bray J. took part: and see also R. v. Benson (1909) 3 Cr.App.R 70, 71-72. The first was R. v. Davis and Ridley (1909) 2 Cr.App.R. 133 in which the members of the Court of Appeal commented adversely upon the failure of counsel to take objection during the trial and observed that if such a practice was starting to emerge then the court would certainly have to be on its guard against it. Darling J., during the course of its judgment for the court, made the following comment at 140:

“... if counsel on the other side do not object, it is not obligatory on the judge to do so. When a prisoner is defended by a counsel, and he chooses, for reasons of his own, to allow such evidence to be let in without objection, he cannot come here and ask to have the verdict revised on that ground.”

An impressive array of judges joined together in the decision of R. v. Ellis [1910] UKLawRpKQB 104; [1910] 2 K.B. 746 where the comment was passed at 763:

“... no doubt this Court must be careful in allowing appeals on the ground of the reception of evidence that ought not to have been admitted when no objection has been made at the trial by the prisoner’s counsel.”

In 1919 Bray J. repeated his view in another case, R. v. Sanders [1919] 1 K.B. 550 at 553, concerning failure to object to the admission of hearsay evidence, as follows:

“In our opinion, if it was intended to rely on this point, the objection should have been repeated at the time when the evidence was tendered, and not having been taken then, it cannot now be taken in this Court at all events when the prisoner was represented by counsel.”

If what the court was saying in the last case cited, amounted to an inflexible rule that an appellant could not argue a point on his appeal merely because it had not been taken or was overlooked during his trial, and irrespective of the effect this omission had on whether or not there was a substantial miscarriage of justice, we would have as much difficulty accepting it as the majority of the judges in the Court of Criminal Appeal in New South Wales had in R. v. Branscombe [1921] NSWStRp 36; (1921) 21 S.R. (N.S.W.) 363 at 367. However, we do not think that the learned judges involved in Sanders had lost sight of the requirements under s. 4 of the Criminal Appeal Act 1907 (Imp.). We believe that the statement made above is impliedly subject to the overall requirement to ensure there has been no miscarriage of justice.

Nevertheless, in the New South Wales case of Branscombe references are made to an aspect which in our view, provides a direction best taken in order to arrive at the more modern view. At 490 of the report, the Chief Justice cites part of a decision in an earlier case where it was said that although the court will not exclude itself from rectifying any miscarriage of justice merely because counsel has failed in his task, yet the “omission at the trial to take an objection which is relied upon afterwards is always a circumstance that would be taken into consideration.”

R. v. Wattam (1941) 28 Cr.App.R. 80, was thought to amount to a ruling that where material had been revealed to a jury which was prejudicial to an accused, no point could be taken on that issue on appeal, unless counsel had made application to the trial judge, to discharge the jury and empanel a new one. However, this interpretation was scotched by Viscount Simon in Stirland v. D.P.P. [1944] A.C. 315 at 327 where his Lordship expressed doubt that the judgment amounted to such a ruling. He agreed however, (at 328) that “the Court must be careful in allowing an appeal on the ground of reception of inadmissible evidence when no objection has been made at the trial by the prisoner’s counsel. The failure of counsel to object may have a bearing on the question whether the accused was really prejudiced. It is not a proper use of counsel’s discretion to raise no objection at the time in order to preserve a ground of objection for a possible appeal ...”.

In our view what the House of Lords is saying in Stirland’s case is nothing more than that the absence of the objection is not a factor which is necessarily conclusive. The same view in substance appears to us to have been taken by the Privy Council in Teper v. The Queen [1952] 2 All E.R. 447 at 451. As their Lordships say, (at 451) in the final analysis they must decide “whether the appellant has shown that the improper admission of the hearsay evidence of identification was so prejudicial to the appellant, in a case where the rest of the evidence was weak, that the proceedings as a whole had not resulted in a fair trial.” It is clear the Privy Council did not consider it necessary to specifically point out that Gibson’s case must be taken within the limitations then required before the commencement of the Criminal Appeal Act 1907. What their Lordships have achieved is a grafting onto the original principle enunciated in Gibson the requirements brought about by s. 4 of the Criminal Appeal Act 1907, namely, if and where there has been wrongful admission of evidence either by design or accident this will not affect the outcome of the case if there has been no substantial miscarriage of justice.

It is obvious therefore, that an essential factor we must consider in the present appeal is the state of the remaining evidence. Much of defence counsel’s energies seem to have been directed to what might be called “the name game”. It is said that the name “X” appearing in the indictment has not been satisfactorily proved because the admission of that name appearing on the post-mortem report, and such name having been given to Dr Seta by a relative out of the hearing of the accused, are breaches of the hearsay rule and defeat any chance of a conviction by the prosecution irrespective of the volume of evidence quite rightly accepted by the learned trial judge disclosing that such person was assaulted by the accused. A man was assaulted by the accused at the time of his original arrest, assaulted whilst being taken from the van to the police station, assaulted in the police station, and subsequently collapsed to the floor and became unconscious after heavy vomiting. He was taken by police in an ambulance to the Lae Hospital, and delivered there into the hands of the male nurse Singh Moses, shortly after which he was pronounced dead by Dr Seta, who subsequently examined him internally the following day. In short, there is ample other evidence quite apart from the hearsay material. What difference does it make in a case where the doctor calls the body Mr X, the nurse calls the body Mr X, and the prosecutor names the body as that of “X” in the indictment, and then produces evidence to show that the accused struck that person who is given the name tag “X”, and that “X” died as a result of injuries sustained by that assault. It is clear that by a failure to cross-examine and to object to the admission of certain material, defence counsel had not made any issue of the identification of the deceased by name during the trial. This certainly constituted the type of “misleading” referred to adversely for example in R. v. Ellis [1910] UKLawRpKQB 104; [1910] 2 K.B. 746 at 763. It is equally clear that there was sufficient evidence for the learned trial judge to conclude beyond reasonable doubt that the accused had been responsible for the unlawful killing of another man. That man was known at least to one person, namely, Dr Seta. as Mr X. That was the name in the indictment. It does not really matter whether the doctor was mistaken in his name or otherwise, for it was Mr X which was the name given to the unfortunate deceased in the indictment, and was the same Mr X who was assaulted by the accused and the same Mr X upon whom the post-mortem examination was performed.

Before concluding this judgment, there are three specific matters arising out of the authorities discussed above, upon which we make comment, although we acknowledge that the matters were not the subject of full argument by counsel.

N1>(1) Irrespective of whether or not counsel objects to the admission of certain evidence, it has been said that there is an overall duty in the trial judge to ensure that only legally admissible evidence goes into the record of the trial: R. v. Gibson, supra at 523; R v. Ellis, at 764; Stirland v. D.P.P., at 327. We feel that such a view of the law when applied from day-to-day with discretion, is particularly apposite to the present circumstances of the country. Such duty of course, is greatly assisted if the prosecutor tenders proper evidence. In the present case, if the prosecutor had called in-chief the relative who identified the body to the doctor, he would not only have discharged his functions with proper professional skill, but could have saved a lot of subsequent time and effort.

N1>(2) We deplore any conduct on the part of counsel which encourages the admission of evidence prejudicial to his client’s case in the hope that at the end of the trial some sort of advantage might be made from such course because the court and opposing counsel had been put off their guard, yet the evidence is known by defence to be clearly inadmissible. Obviously, we are not concerning ourselves here with those areas where genuine doubt exists. What we are criticising is the type of situation where counsel firmly believes that the material is inadmissible and illustrates the firmness of that belief by making submission on the point immediately after the end of the trial. It is not necessary for us to make any assessment in the present case as to whether this course of conduct was deliberately followed by counsel. There may have been a number of reasons why he took the course he did and as he did not argue the appeal before us he could not give us any enlightenment.

N1>(3) Finally, it seems to be an inescapable conclusion that in failing to cross-examine the doctor on the discrepancy between the date in his report and the date which he gave in his sworn testimony before the trial judge counsel for the defence completely disregarded the requirements set forth in Browne v. Dunn referred to once again as recently as 1977 by Prentice J. (as he then was) in The State v. Ogadi Minjipa [1977] P.N.G.L.R. 293. We would take this opportunity of repeating and adopting what his Honour had to say at 296-297:

“Before concluding, I should again mention, as other judges and myself have many times done before, that defence counsel do their clients no good by not opening in cross-examination of State witnesses the version upon which the defence relies. If it is to be suggested that State witnesses are lying or mistaken or failing in accuracy of recollection, they should be questioned to that effect and given an opportunity to explain. You cannot correctly professionally keep your own case secret until your client gives evidence. Nor can you expect that his story will receive much credit — if this course be taken. I draw counsel’s attention again to the old case of Browne v. Dunn (1894) 6 R. 67 H.L. (reported in Cockle’s Cases and Statutes on Evidence (11th ed.), at 265) which sets out the duty of counsel in this regard as understood in the United Kingdom and makes comments as to the credibility of the opposing case where this course is not taken. The comments of Lord Herschell, Lord Morris, Lord Halsbury and Lord Bowen, with respect, appear to me to be of plain common sense suitable to and applicable in our courts. The case of R. v. Hart (1932) 23 Cr.App.R. 202 illustrates the converse case — that if the prosecution intends to ask the tribunal to disbelieve a witness — it is right and proper that that witness be challenged by cross-examination while in the witness box and it made plain that his evidence is not accepted.”

Of course in the long run the situation may be that there has been no unacceptable breach of the hearsay rule at all. When I tell someone my name I am merely passing on the information given to me by a fond parent in the dim past. Similar information was given to the clerk in the Registrar General’s office. All the relative could say in the witness box in the present case was a name which someone told him, perhaps the deceased, some years before.

In our view the course pursued by defence counsel at the trial and persisted in during this appeal was quite misconceived. Leave to appeal must be refused and the appeal is dismissed.

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Papua New Guinea Law Reports

Awoda v The State [1984] PGLawRp 439; [1984] PNGLR 165 (28 June 1984)

Papua New Guinea Law Reports - 1984